COVID-19 WAGE SUBSIDIES AFTER THE RISTORI AND RISTORI-BIS DECREES
Article 12, D.L. 137/2020, provides for the further extension of the social shock absorbers connected to the epidemiological emergency by COVID-19 (Cigo, Cigd, Aso and Cisoa), for a maximum duration of 6 weeks, to be placed in the period between 16 November 2020 and 31 January 2021. The integration periods previously requested and authorised pursuant to article 1, Law Decree 104/2020, converted with amendments by Law 126/2020, placed, even partially, in periods after 15 November 2020, are charged, if authorised, to the 6 weeks provided for by the Ristori Decree.
The 6 weeks are due to:
- employers who have already been fully authorised for the additional period of 9 weeks referred to in article 1, paragraph 2, of LD 104/2020, converted with amendments by Law 126/2020, after the authorised period has elapsed;
- employers belonging to the sectors affected by the measures ordering the closure or limitation of economic and productive activities in order to deal with the epidemiological emergency by COVID-19, therefore even if the 18 weeks of Law Decree 104/2020 have not been used.
With regard to workers involved, the Ristori-bis Decree Law established that these integration treatments (article 12, Ristori Decree) also apply to workers on 9 November 2020. It should be noted that, in the absence of a provision on the subject, with reference to the treatments provided for by Decree Law 104/2020, INPS, in its Circular no. 115/2020, set 13 July 2020 as the date on which workers must be employed in order to be eligible for the August Decree wage subsidies.
As well as the additional 9 weeks provided for by Law Decree no. 104/2020, the 6 weeks of the Ristori Decree Law are also subject to an additional contribution, which the employer is required to pay starting from the pay period following the measure granting the salary supplement, determined on the basis of a comparison between the company’s turnover for the first half of 2020 and the corresponding half of 2019, equal to:
- 9% of the total remuneration that would have been due to the worker for hours not worked during the suspension or reduction of work, for employers who had a reduction in turnover of less than 20%;
- 18% of the total remuneration that would have been due to the worker for hours not worked during the suspension or reduction of work, for employers who had no reduction in turnover.
The additional contribution is not payable by employers who have had a reduction in turnover of 20% or more and for those who started the business after 1 January 2019. Moreover, employers belonging to the sectors affected by the measures ordering the closure or limitation of economic and productive activities in order to face the epidemiological emergency from COVID-19, are excluded.
In order to gain access to the additional 6 weeks, the employer must submit an application for a concession to INPS, in which he self-certifies the existence of any reduction in turnover that leads to the exemption, i.e. the rate of the additional contribution: in the absence of self-certification, the rate of 18% applies.
Applications for access to the treatments provided for by the Ristori Decree Law must be forwarded to INPS, under penalty of forfeiture, by the end of the month following the month in which the period of suspension or reduction of work activity began: in the first application phase, the forfeiture deadline is set by the end of the month following the month in which the Ristori Decree came into force (this would determine the need to submit applications for suspensions occurred since November 16, 2020).
In the case of direct payment of the benefits by INPS, the employer is required to send the Institute all the data necessary for the payment or the balance of the wage supplementation by the end of the month following the month in which the wage supplementation period is placed, or within 30 days of the adoption of the concession measure, whichever is later: on first application, these deadlines are moved to the 30th day following the date of entry into force of the Ristori Decree, if the latter date is later than the date referred to in the first period. Once these deadlines have elapsed unnecessarily, the payment of the service and related charges shall remain the responsibility of the defaulting employer.
EXEMPTION FROM SOCIAL SECURITY CONTRIBUTIONS FOR COMPANIES THAT DO NOT REQUIRE CIG
Inps, with message no. 4254 of 13 November 2020, offered operational indications for the request for authorisation and for the correct exposure in the UniEmens flow of the data related to the contribution exemption for companies that do not require COVID-19 redundancy payments.
This exemption was provided for by Article 3, Law Decree No. 104/2020, subject to authorisation by the European Commission: the Ministry of Labour notified to the European Commission, on October 28, 2020, the State aid scheme, which was approved by decision C (2020) 7926 final of November 10, 2020.
The Institute specifies that the employer who decides to access the exemption, for the duration of the subsidised period, will not be able to make use of any further salary integration treatment linked to the COVID-19 emergency, unless the further treatment of Cig concerns a different production unit.
CONTRIBUTION EXEMPTION FOR NEW HIRINGS
Article 6, Legislative Decree 104/2020, so-called August Decree, has provided for the total exemption from the payment of social security contributions borne by the employer for new hirings on permanent contracts, made from 15 August 2020 until 31 December 2020, of workers, with the exclusion of apprenticeship and domestic work contracts, extended by article 7 to hirings on fixed-term contracts or with seasonal employment contracts in the tourism and spa sectors, in the same period of time, limited to the period of the contracts stipulated and in any case up to a maximum of 3 months.
With Circular no. 133/2020, INPS has provided the indications and instructions for the management of social security obligations connected to the above mentioned measures of exemption from contributions.
The benefit is available to all private employers, including non-entrepreneurs, with the exception of the agricultural sector.
Incentivised employment relationships and workers for whom exemption is granted
The exemption concerns all permanent employment relationships (both new hirings and transformations of previous fixed-term relationships), including part-time and subordinate employment relationships established in implementation of the association bond with a labour cooperative, as well as hirings on a permanent basis for the purpose of employment, with the exception of apprenticeship contracts (of any type) and domestic work. For part-time relationships, the maximum exemption threshold is reduced on the basis of the duration of the specific working hours. Intermittent or on-call employment contracts, even if entered into for an indefinite period or with availability indemnity, are not included among the types of incentive relationships.
The exemption applies to recruitment/training carried out between 15 August 2020 and 31 December 2020. In case of conversion of fixed-term contracts in the tourism sector and spas into permanent employment relationships, the exemption applies and the employer will be entitled to a further 6 months of relief from the date of conversion.
Workers who have had an open-ended contract in the 6 months prior to hiring in the same company, are excluded from the exemption.
Structure and extent of the exemption
The exemption is equal to the employer’s social security contribution, excluding premiums and contributions due to the INAIL, for a maximum amount of 8,060 euros on an annual basis, repaired and applied on a monthly basis for a maximum of 6 months from the date of recruitment/transformation for an indefinite period and, for fixed-term relationships or with a seasonal employment contract in the tourism and spa sectors, for the duration of the relationship, up to a maximum of 3 months’ salary.
The maximum threshold of exemption from employer’s contribution for the monthly pay period is, therefore, equal to € 671.66 (€ 8,060/12) and, for employment relationships established and terminated during the month, this threshold should be re-proportioned taking as a reference the measure of € 21.66 (€ 671.66/31) for each day of benefitting from the contribution exemption. The maximum monthly exemption threshold will be equal to the lower amount between the contribution due and the annual relief ceiling repaired on a monthly basis. In the case of part-time employment relationships, the benefit ceiling must be proportionally reduced. Therefore, if an employment relationship is established on a 50% part-time basis, the maximum amount of the relief available for each individual month will be € 335.83 (€ 671.66/2).
The following contributions are not subject to relief:
- premiums and contributions due to Inail;
- the contribution, where due, to the “Fund for the payment to employees in the private sector of severance indemnities pursuant to Article 2120 of the Italian Civil Code”;
- the contribution, where due, to the Funds pursuant to Articles 26, 27, 28 and 29 of LD 148/2015, as well as to the Inter-sector Territorial Solidarity Fund of the Autonomous Province of Trento and the Bilateral Solidarity Fund of the Autonomous Province of Bolzano-Alto Adige;
- the contribution, where due, to the Solidarity Fund for the air transport sector and the airport system;
- the contribution of 0.30% of the taxable salary, destined, or otherwise, to the financing of inter-professional funds for continuing training;
- contributions that do not have a social security nature and those designed to bring elements of solidarity to the reference social security management (see Circular no. 40/2018).
In cases of transformation of term relationships or their stabilisation within 6 months of their expiry, the additional contribution of 1.40%, where due, provided for fixed-term contracts, is refunded.
The exemption has a duration of 6 months for hiring/transformation contracts of indefinite duration and, for fixed-term contracts, the duration is equal to the end of the relationship and in any case up to a maximum of 3 months. In the event that an exemption has already been granted for temporary employment, in the event of conversion of the permanent relationship, the exemption is granted for a further 6 months from the date of conversion.
The period of entitlement to the incentive can only be suspended in cases of compulsory absence from work for maternity leave, allowing, in this case, the period of entitlement to the benefit to be deferred.
In any case, the benefit is granted within the limits of the resources specifically allocated.
Conditions of entitlement
The right to benefit from the exemption is subject to the possession of Durc, the absence of violations of the fundamental rules for the protection of working conditions and compliance with other legal obligations, as well as compliance with national agreements and collective agreements, as well as regional, territorial or company agreements, signed by the employers’ and workers’ trade unions that are comparatively more representative at national level.
In addition, hiring:
must not violate the right of precedence to the re-employment of another worker dismissed from an open-ended or terminated employment relationship, even if, prior to the use of a worker by means of a contract of employment, the user has previously offered the worker with a right of precedence for re-employment (in the absence or pending a written willingness on the part of the worker, within the terms of the Law, the employer may legitimately recruit other workers);
must not concern workers dismissed, in the previous 6 months, by an employer that, at the date of dismissal, had elements of relationship with the employer it hires, in terms of the substantial coincidence of ownership structures or the existence of control or connection relations.
The late forwarding of compulsory telematic communications relating to the establishment of the employment relationship or incentivised employment produces the loss of the part of the incentive relating to the period between the start of the subsidised relationship and the date of the late communication.
With reference to the staff leasing contract, the benefits are transferred to the user.
Employment incentives are not payable if:
- hiring constitutes implementation of a pre-existing obligation, established by law or collective bargaining, even if the employee entitled to employment is used by means of a staff leasing contract;
- the employer or the user with a contract of supply is under suspension from work related to a company crisis or reorganisation, except in cases where the hiring, transformation or supply is aimed at hiring workers at a different level from that held by the suspended workers or to be employed in different production units.
|The hypothesis of suspension from work for a COVID-19 reason is a condition similar to objectively unavoidable events (so-called EONE), therefore, where the company is affected by suspensions for reasons connected with the emergency, it can in any case proceed with new hiring and access the related benefits.
For the legitimate recognition of the exemption for hiring/processing of an indefinite duration, the worker must not have had an indefinite relationship with the same employer in the previous 6 months.
The exemption under Article 6 is characterised as a generalised intervention or potentially addressed to all private employers operating in any economic sector of the country, whose production units are located in any area of the national territory, and its application does not depend on criteria of administrative discretion, therefore it cannot be subsumed in the discipline under Article 107, TFEU on aid granted by the State or through State resources.
On the contrary, the benefit provided for in Article 7, as it relates only to the tourism and spa sectors, is a selective measure, which, as such, requires the prior authorisation of the European Commission, contained in Decision C (2020) 8036 final of 16 November 2020. It is recalled that the Commission considers State aid compatible with the internal market if it meets, among others, the following conditions:
- an amount not exceeding € 800,000 (per company and gross of any taxes or other charges);
- granted to companies that were not already in difficulty on 31 December 2019;
- by way of derogation from the previous point, granted to micro or small enterprises already in difficulty on 31 December 2019, provided they are not subject to collective insolvency proceedings and have not received rescue or restructuring aid;
- granted by 30 June 2021.
Furthermore, it should be noted that the aid referred to in Article 7 is recognised in accordance with the provisions of the Temporary Framework, the so-called Deggendorf clause shall apply, which means that the beneficiaries of aid which must be recovered in execution of a decision of the European Commission and for which it would not be possible to request the granting of new aid in the absence of repayment of the former, shall have access to the aid net of the amount due and not repaid, including interest accrued until the date of disbursement.
As will be further explained in a forthcoming circular, also the measures provided for in circulars no. 105/2020 and no. 122/2020 are recognised to micro or small enterprises already in difficulty on 31 December 2019, provided they are not subject to insolvency proceedings and have not received rescue or restructuring aid.
Coordination with other incentives
The exemption can be cumulated with other exemptions or reductions in funding rates provided for by current legislation, within the limits of the social security contribution due. Therefore, considering that the relief takes the form of a total exemption from the payment of the employer’s contribution, the above mentioned cumulation can be applied only where there is a residual contribution that can be reduced in abstract terms and within the limits of the same contribution due.
QUARANTINE LEAVE AND SUSPENSION OF TEACHING ACTIVITIES IN ATTENDANCE
With Circular no. 132/2020, INPS provides further administrative instructions on the right to take COVID-19 leave for school quarantine of children and for suspension of their children’s teaching activities in attendance, following the changes introduced by the August Decree, as amended by the Ristori Decree, in addition to the indications contained in Circular no. 116/2020, which remain operational.
By means of a subsequent circular, INPS will provide information on extraordinary leave for parents in the event of suspension of teaching in attendance of secondary schools as per article 13, Ristori-bis Decree, recognised in favour of parents who are employees for the periods of suspension of teaching activities indicated in the order of the Ministry of Health adopted pursuant to the Prime Ministerial Decree of November 3, 2020.
Article 5, Law Decree 111/2020, introduced, in favour of parents who are employees, an indemnified leave (so-called COVID-19 leave for school quarantine of children), to be used to abstain from work, in whole or in part, during the period of quarantine of the cohabiting child under the age of 14, ordered by the Prevention Department of the Local Health Authority responsible for the area following contact within the school plexus. The leave may be taken:
- in cases where parents cannot perform the work in an agile manner and in any case as an alternative to this type of work performance;
- by only one of the parents living with the child or by both, but not on the same days, for school quarantine periods of the children included between 9 September and 31 December 2020.
Law no. 126/2020 repealed Decree Law no. 111/2020, providing for the new discipline of extraordinary leave for school quarantine, which can be used as an alternative to work in an agile manner, even in cases where the contact took place in places other than the school plexus.
Law Decree 137/2020 has:
- further amended Article 21-bis, Law Decree 104/2020, increasing the age of the child up to 16 years, for which the working parent can perform work in agile mode for all or part of the period corresponding to the duration of the quarantine ordered for the child and granting the parents of children between 14 and 16 years of age the right to abstain from work without the right to payment of any indemnity or recognition of notional contributions, with a ban on dismissal and the right to keep their job. In the latter case, parents must submit the application for leave in question only to their employer and not to INPS;
- the possibility of taking the leave has been widened to include the possibility of taking it also in the case of suspension of the teaching activity in attendance of the cohabiting child under the age of 14.
Extension of cases
The possibility of taking quarantine leave for a child under the age of 14, as an alternative to working in an agile manner, as well as in the case of contact within the school plexus, is also extended to basic sports activities or motor activities in facilities such as gyms, swimming pools, sports centres, sports clubs, both public and private, as well as within structures regularly attended to follow music and language lessons, provided that quarantine has been ordered by a measure of the local health authority’s prevention department and only for periods from 14 October 2020, even with measures previously ordered.
In addition, there is the possibility of taking leave for suspension of teaching activities in attendance of the cohabiting child under the age of 14, provided that the suspension has been ordered by a measure, adopted at national, regional, provincial, municipal or individual school structures, for periods from 29 October 2020.
Any appeals against the denial measures will be reviewed in self-protection, without prejudice to the possibility for the citizen to appeal to the Judicial Authority.
The leave is incompatible with:
- the simultaneous performance – by the other parent – of work in an agile manner, also for another reason than that provided for the school quarantine of the child under the age of 14 or for the suspension of teaching activities in attendance of the same;
- the simultaneous use – by the other parent – of the child’s school quarantine leave or the suspension of teaching activities in the presence of the child;
- the failure of the other parent to work.
It has also been introduced the possibility of taking the child’s school quarantine leave at the same time or for the suspension of teaching activities in attendance of the child by the other parent who is also the parent of other children under the age of 14 who are not taking one of the above measures. Therefore, if one parent takes the child’s school quarantine leave or suspension of teaching activities in the presence of the child, the other parent may not take the measures in question for that child on the same days, but may take them for another child in another relationship, provided that the parent of the other child is not also taking quarantine leave or work for the child or suspension of teaching activities in attendance of the child.
In relation to the provisions on the provision of agile work pursuant to Article 39 of Legislative Decree no. 18/2020, as well as the new legislation on agile work for parents of children with disabilities, INPS specifies that the use of the leave is compatible with the simultaneous performance by the other parent of agile work for another child with a recognised serious disability.
The indications provided in paragraphs 2.3 and 2.4 of Circular no. 116/2020 on compatibility/incompatibility remain valid.
EXTENSION OF THE BLOCK ON DISMISSALS FOR JUSTIFIED OBJECTIVE REASONS
Law Decree 137/2020, known as the Ristori Decree, extends to 31 January 2021, unless further (announced) regulatory measures are taken, the ban on dismissals for justified objective reasons. Contrary to the previous provisions, the relationship between the use of social shock absorbers and the possibility of ordering redundancies for economic reasons disappears. Therefore, regardless of having made full use of the COVID-19 social shock absorbers, including the additional 6 weeks provided for by the Ristori Decree, employers will not be able to make redundancies for objective reasons until 31 January 2021.
The Decree, like the August Decree, prohibits economic, individual or collective redundancies, and provides for the suspension of any procedures already initiated under Law 223/1991, after 23 February 2020.
The explicit exceptions to the application of the prohibition are confirmed:
- in the event that the personnel affected by the withdrawal, already employed in the contract, are re-hired following the takeover of a new contractor pursuant to the Law, the National Collective Bargaining Agreement or a clause in the contract;
- definitive cessation of the company’s activity, following the liquidation of the company without continuation, even partial, of the activity, in cases where, during the liquidation, there is no transfer of a set of assets or activities that could constitute a transfer of the company or a branch of it, pursuant to article 2112 of the Italian Civil Code;
- a company collective agreement, entered into by the trade unions that are comparatively more representative on a national level, as an incentive to terminate the employment relationship, limited to workers who adhere to the said agreement;
- in the event of bankruptcy, when no provision is made for the provisional exercise of the company or its termination. In case the provisional exercise is provided for a specific branch of the company, redundancies concerning the sectors not included in the same are excluded from the prohibition.
It should be remembered that dismissal will in any case be allowed:
- for disciplinary reasons;
- for failure to pass the probationary period;
- the apprentice for the end of the training period;
- for passing the behavioural period;
- the family collaborator;
- the manager.
THE VACCINE IN THE COMPANY IS NOT TAXABLE
Reimbursement of expenses incurred by the worker for vaccination does not constitute compensation (good or service) in kind and, therefore, the same will not fall within the deductible of 258.23 euros.
The similarity of Coronavirus symptoms with influenza syndrome and the consideration that, even within the company, it may be appropriate to make “differential diagnoses” to avoid Covid outbreaks prompts many employers to make a free influenza vaccination service available to their employees. The value of the vaccination service does not constitute income for employees. In fact, although such initiatives may bring an indirect benefit to employees, they do not enrich workers and are made available to them also and above all in the “prevailing” corporate interest (Circular no. 37/E of 20 December 2013).
The non-taxability of the vaccination service offered to all employees, on company premises or at approved centres, is provided for by Article 51, paragraph 2, letter f) of the Tuir, according to which “the use of the works and services recognised by the employer voluntarily or in accordance with provisions of contract or agreement or company regulations is excluded from income (and, therefore, is not subject to taxes and contributions), offered to the generality of employees or to categories of employees and family members indicated in article 12 for the purposes referred to in paragraph 1 of article 100”, i.e. for the purposes of education, education, social assistance, health care and worship.
In addition, the vaccination service provided to family members (Article 433 of the Civil Code) is also excluded from taxation, regardless of the condition of dependent family member, cohabitation with the employee and the receipt of legal alimony allowances.
If, on the other hand, the employer reimburses only the cost of flu vaccination directly incurred by employees, the tax “management” is more complex. As a matter of fact, following the application of the principle of all-inclusiveness of the employee’s income, according to which reimbursements received by the employee on account of his status as an employee also constitute income, in the absence of specific exclusion rules, the reimbursement of health expenses constitutes income.
In the event that the reimbursement of health expenses is made in accordance with collective agreements or company agreements and regulations, since the expenses reimbursed are also considered to be borne by the taxpayer if the reimbursement has, in any case, contributed to forming the employee’s income, the employee is granted the right to the deduction referred to in article 15, paragraph c) of the Tuir at the end of the year or at the end of the relationship (circular 326 of 23 December 1997 and resolution 285 of 19 July 2019).
Reimbursement of expenses incurred by the worker for vaccination does not constitute compensation (good or service) in kind and, therefore, the same will not fall within the deductible of 258.23 euros (doubled for 2020 to 516.46 euros) pursuant to article 51, paragraph 3 of the Tuir. However, in order to use the franchise, the employer could consider making available to all employees vouchers that can be activated by more than one health care professional who give the right to the flu vaccination service.
The costs incurred by the employer to make the vaccination service available to all employees are fully deductible (article 95 of the Tuir) in all cases where such an initiative is the result of an obligation to negotiate, while they will only be deductible up to a limit of 5 per thousand (article 100, paragraph 1, Tuir) when the initiative is taken voluntarily. Finally, the reimbursement of the cost of vaccination incurred by the employee will also be fully deductible under Article 95.
SPID, COMPULSORY FOR ALL ONLINE SERVICES OF THE MINISTRY OF LABOUR
Also the Ministry of Labour, starting from 15 November 2020, has entered the list of public administrations that allow access to companies exclusively with Spid (Public Digital Identity System) credentials for the provision of services and other utilities.
The following services can be requested through the above mentioned modality:
Telematic deposit of contracts,
- Entry management platform for traineeships of non-EU citizens,
- Periodic report on the situation of male and female staff,
- Smart working,
It should be noted that by 28 February 2021, all the sites of public bodies, must be operational through Spid, as established by the law of 11 September 2020 n°120 which converted the decree law of 16 July 2020 n°76 (so-called simplifications).
It is possible to request the Spid from one of the different Identity Providers, who manage the authentication procedure.
LDP remains available for any further clarification.